husband filing divorce petition is no justification for wife to lodge false criminal cases against...

7/25/2019 Husband Filing Divorce Petition is No Justification for Wife to Lodge False Criminal Cases Against Him and His Famil

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FAMILY COURT APPEAL NO.13 OF 2008

Dr.-X Husband

...APPELLANT

(Orig. Petitioner)

VERSUS

Dr.-Y Wife

...RESPONDENT

...

Mr. P.M. Shah, Senior Counsel with Mr. Amol

N. Kakade Advocate for Appellant-Husband.

Mr. V.D. Sapkal Advocate for Respondent-Wife.

...

CORAM: R.M. BORDE AND

A.I.S. CHEEMA, JJ.

DATE OF RESERVING JUDGMENT :9th DECEMBER, 2015

DATE OF PRONOUNCING JUDGMENT:21st JANUARY, 2016

JUDGMENT [PER A.I.S. CHEEMA, J.] :

1. This Appeal is filed by the Appellant -

husband an Ophthalmologist (hereafter referred as

"Petitioner"), whose Petition for divorce against

the Respondent - wife B.H.M.S. - practicing

::: Uploaded on - 21/01/2016 ::: Downloaded on - 23/01/2016 07:14:37 :::

W W W . L I V E L A W . I N


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Homeopathy (hereafter referred as "Respondent")

has been dismissed by the Family Court, Aurangabad

in Petition No.A.263 of 2006. Keeping in view the

nature of dispute, we have blocked the names of

the parties in the cause title.

2. Succinctly put, the marriage between the

parties took place on 29th November 2002. They

lived together happily for some time and then due

to disputes, the Petitioner claims that the

Respondent deserted him on 30th December 2003. The

Respondent claims that she was beaten and left at

the place of her parents on 4th December 2003.

Petitioner - husband earlier filed Divorce

Petition No.A.46 of 2004 on 3rd February 2004. The

Respondent received summons in that matter on 9th

February 2004. Thereafter few incidents took place

and the Respondent filed F.I.R. leading to

criminal case against the Petitioner and his other

family members. The Petitioner withdrew earlier

divorce Petition due to further developments. The




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present Petition No.A.263 of 2006 came to be filed

later on, on 27th September 2006, which has now

been dismissed by the Family Court on 27th March

2008.

3. To understand the disputes between the

parties, it is now necessary to refer the facts in

some more details.

EARLIER PETITION NO.A.46 OF 2004

. Exhibit 52 is copy of the earlier

Petition No.A.46 of 2004. It was divorce

Petition under Section 13 of the Hindu

Marriage Act, 1955. The Petitioner claims

that his marriage with Respondent could be

termed as self arranged marriage.

Engagement took place on 27th October 2002.

The engagement was broken by the parents of

the Respondent on the ground that she was

not offered proper gifts and number of




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persons who attended the function were

more. As Respondent and her paternal uncle

were ready for marriage, registered

marriage was performed and religious rites

were carried out at Ghrishneshwar Temple,

Ellora (on 29th November 2002). Reception

took place on 8th December 2002, in which

only uncle and aunt of Respondent attended.

In the evening, on the day of marriage,

the parents and relatives of Respondent had

come to the residence of the Petitioner and

quarreled. The marriage was happy for few

days. Later on Respondent was not behaving

properly and insulted the Petitioner in

front of his parents and friends. She used

to take suspicion against the Petitioner

if any time he talked with any girl. She

suspected him with his cousin sister also

and he was lowered in the eyes of relatives

and sister. When a female friend called

from Bombay, Respondent quarreled with the




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Petitioner and left the house alleging that

Petitioner had relations with that friend.

She was back answering elderly persons and

mother of Petitioner. The Respondent was

being instigated by her parents. She had

the habit of disclosing private life to

friends and creating embarrassment. She

left house on many occasions and the

Petitioner brought her back. She did not

behave properly with friends and relatives

and avoided to perform religious

ceremonies. She had the habit of leaving

the gold ornaments open on bed and when

pointed out, she quarreled. She quarreled

and deserted the Petitioner claiming that

she will put him behind the bars. She

threatened to commit suicide. She

consistently humiliated him which acts

amounted to cruelty. It had become

impossible to live with her due to mental

agony and torture.




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. With such facts the first Petition

claimed divorce.

WITHDRAWAL OF EARLIER PETITION:

4. The Petitioner filed application (Exhibit

58) in the earlier Petition claiming that the

Respondent has now filed criminal complaint and he

wanted to withdraw the Petition to file fresh

divorce Petition after dismissal of the criminal

case and so with permission, liberty may be given.

The Respondent took time to reply but did not file

reply and then the Judge of the Family Court,

without recording grant of permission, passed

order dismissing the Petition for want of

prosecution. Against the withdrawal, Respondent

filed Family Court Appeal No.47 of 2004 (Exhibit

59) in this Court and the Appeal was dismissed

with clarification that no adverse order has been

passed against the present Respondent, as no leave




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had been granted.

PRESENT PETITION NO.A.263 OF 2006

5. Subsequently the present divorce Petition

No.A.263 of 2006 was filed. In this Petition the

first twelve paragraphs are similar to the

averments as made in the earlier Petition, to

which we have made brief reference above. From

Paragraph No. 13 onwards, there is reference to

other facts which took place after filing of the

earlier Petition. We proceed to refer to those

facts in brief, as pleaded by the Petitioner.

. The Petitioner has now further

claimed that after the earlier Petition was

filed, notice was issued to Respondent and

it was served on her. Thereafter she came

to the Petitioner and gave threats that she

will file false criminal case under Section

498-A of the Indian Penal Code (I.P.C.)

against him and his family members. On 25th




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February 2004 when Petitioner was going on

motorcycle from Kranti Chowk towards

Paithan Gate, at about 2.00 p.m., in Nutan

Colony, the Respondent stopped him and gave

such threats. She also threatened that she

will commit suicide and implicate him and

his family members and put them in jail. On

26th February 2004 she came to the clinic

of the Petitioner and in front of patients

abused and threatened him. In view of such

acts of Respondent, the Petitioner filed

application with Kranti Chowk Police

Station on 27th February 2004. On 28th

February 2004 Respondent came in front of

his clinic and asked him to withdraw the

divorce Petition or else she would file

case under Section 498-A of I.P.C. The

Petitioner informed this to Mukundwadi

Police Station vide N.C. No.163 of 2004.

The Respondent filed false complaint

(F.I.R.) on 29th February 2004 making false




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and vexatious allegations against the

Petitioner, his mother, two brothers and

wife of one brother that she was ill-

treated, assaulted and there was dowry

demand of Rupees Two Lakhs and Fifteen Tola

gold. She claimed that she had been

assaulted on 28th February 2004 in the

cabin of the Petitioner. This led to

registration of offence at Jinsi Police

Station vide Crime No.I-14 of 2004. The

Petitioner and his family members suffered

great hardship. The Petitioner and his

brother Vijay were arrested and thereafter

came to be released on bail. They were

greatly humiliated. When bail petition came

up, Respondent, although she did not have

injury, bandaged her both hands and

appeared before the Court to take sympathy

and tried to get the bail rejected. She

appeared in the course of trial on each

date and opposed exemption applications.




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She gave false evidence in the criminal

case. (The Petition then mentions as to

what was allegedly the false evidence.)

Respondent went back from her signature on

application which she had given at the time

of marriage to Jinsi Police Station that

she had married on her own accord. She

sought various adjournments in the criminal

case and at the stage of arguments even got

the case transferred vide Transfer Petition

No.68 of 2006 making averments against the

Judicial Officer. The Petitioner and his

family members came to be acquitted. The

marriage has irrevocably broken down and

parties have been residing separately for

more than 2 years. Respondent left the

house on 30th December 2003 without any

reason and has been guilty of willful

mental ill-treatment and cruelty to

Petitioner. It is impossible for the

parties to live together without mental




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agony, torture and distress. Thus the

divorce Petition.

DEFENCE

6. The Respondent filed Say/Written

Statement vide Exhibit 40. We proceed to refer to

those facts in brief, as pleaded by the Respondent

in the Written Statement:

. It is not disputed by the

Respondent that engagement took place on

27th February 2002. She claims that her

parents spent Rupees Sixty Thousands on the

engagement. The marriage was fixed for 29th

December 2002 but the Petitioner wanted to

finish up the marriage ceremony in simple

and economical manner. For saving Rupees

Two Lakhs, parents of Respondent agreed.

They gave garland of five Tola gold to her

and remaining ten Tola gold was to be given




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within a year. Marriage took place at

Ellora in Ghrishneshwar Temple in simple

ceremony. It is denied that Petitioner

arranged reception on 8th December 2002.

Her parents and relatives attended and

there was no quarrel. She denies that she

was taking suspicion or that she quarreled

on that count. She claims that the elder

brother of Petitioner, Mr. Sujay was

married unemployed. Though he was living

separate but used to come for meals twice

in the house of the Petitioner. She claims

that he was "parasite"(?) in the family.

Her father was serving in S.T. Department.

She has two sisters, one brother and

mother. She comes from religious, social,

cultural back-ground. She never threatened

Petitioner with case under Section 498-A of

I.P.C. and she is from medical side and not

legal side. The earlier Petition was

withdrawn as Petitioner had filed bogus pan




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card and income tax record in the earlier

case when pendente lite maintenance was

sought by Respondent and Respondent filed

complaint of forgery and cheating. The

present Petition is hit by the principle of

'res judicata'. When the earlier divorce

Petition was filed, the Respondent had

requested Petitioner to withdraw the

divorce Petition. On the contrary,

Petitioner went to police station as he

wanted to swallow the clinic developed by

her from her money of medical profession

and stridhan. When she requested to

withdraw the Petition, she was beaten when

she was attending patients and her thumbs

were fractured by the Petitioner. Although

both her thumbs were fractured by the

Petitioner, she did not go to private

doctor as she did not want to disclose the

deeds of her husband. She went to Ghati

hospital where police made out Medico Legal




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Case and recorded offence under Section

498-A of I.P.C. as the Petitioner - husband

had demanded Rupees Two Lakhs and fifteen

Tola gold from her parents. She claimed

that the Petitioner and his family members

got acquitted as they managed the police

and pressurized police prosecutor. She has

preferred appeal to the High Court.

. In the Written Statement, further

pleas are raised by the Respondent.

According to her, it cannot be said that

the marriage between her and Petitioner was

love marriage. She claims that the

Petitioner and his mother had approached

the parents of Respondent and the

engagement took place. Out of oneness she

was sending patients to the Petitioner

thereafter. When the marriage was preponed,

it was agreed that whatever would be saved,

would be spent on further development of




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the couple. Her father agreed to give

fifteen Tola gold after marriage. After

simple ceremony at Ellora, marriage was

registered. She started living in the three

storeyed building at Seven Hill Colony,

belonging to the Petitioner. Petitioner

insisted that she should not practice in

slum area and should shift in Indu-Ganga

complex where he was practicing. Even prior

to marriage, believing Petitioner, she

shifted in that complex and took gala on

rent. She took Rupees One Lakh Sixty

Thousands from the State Bank of Hyderabad

as loan to set up the clinic. She got the

loan after engagement ceremony had taken

place. Petitioner asked her to shift her

practice in the same clinic where he was

practicing. She spent the amount in setting

up both the clinics. Petitioner took Rupees

Seventy Thousand from the loan which was

sanctioned to her and spent it on his




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family members. She claims that Rupees

Ninety Five Thousand were still outstanding

from the said loan amount. After marriage

she was treated nicely for two months.

Thereafter her mother-in-law Nirmala,

sister-in-law Pragati and brother-in-law

Sujay started claiming that Petitioner was

highly qualified and could have got big

money as dowry and girl who had M.B.B.S.

degree, but he had preferred a girl from

hutment. She claims that her mother-in-law

and sister-in-law started quarreling with

her that she does not know cooking and

domestic work. They started instigating

Petitioner who started beating her. She was

beaten on 9 to 11 occasions. Petitioner was

himself taking her to clinic and dropping

back out of suspicion that she may go to

her parents. When she was beaten, he took

her to doctors, namely Rege, Sameer

Deshmukh, Dande, Rakshale under fear that




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Respondent should not expose him. Mother-

in-law, sister-in-law and brother-in-law

were alleging that she had extra marital

affair, without naming any body. When her

father met with an accident and was in

hospital for eight months, she was never

allowed to meet him. Her income of

Rs.7000/- to 8,000/- per month was being

taken away by the Petitioner. She was

brutally beaten on 4th December 2003 for an

hour and dropped at the place of her

parents, on 5th December 2003. She was

pregnant of three months at that time. She

developed complications and was taken to

Dr. Mrs. Mahindrakar. Doctor informed the

Petitioner but he did not come. She lost

her child at that time, due to physical,

verbal and economical abuse. Her sister-in-

law Pragati, mother-in-law Nirmala,

brothers-in-law Vijay and Sujay claim that

she does not know cooking and spends money




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on beauty parlour and shopping and they

don't need her. Petitioner used to be mute

spectator to all this. Even after she was

left at the place of her parents, she was

attending the clinic at Indu-Ganga complex.

She tried to go back to matrimonial home

but was denied entry and was asked to bring

fifteen Tola gold and Rupees Two Lakhs.

After separation she was not able to

practice as when she joined Dr. Roplekar

and later on Dr. Jadhav, she was removed

due to Petitioner and her mother-in-law not

liking her working. On 16th July 2006

there was an advertisement showing

inauguration of big hospital by the

Petitioner at Seven Hills Colony. The

hospital is worth Rupees Three Crores and

the Petitioner is earning not less than

Rupees One Lakh per month. Respondent

claimed that she is entitled to Rupees

Twenty Five Thousand per month as pendente




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lite maintenance.

ISSUES ANE EVIDENCE BROUGHT BEFORE FAMILY

COURT:

7. With such pleadings, the Family Court

framed issues at Exhibit 28. First issue related

to jurisdiction to try the case. Second issue

related to alleged cruelty. Third issue related to

the question whether the Respondent had deserted

Petitioner without reasonable cause. Fourth issue

related to, whether there was bar under Section 23

of the Hindu Marriage Act. Parties brought on

record necessary evidence. Petitioner examined

himself as PW-1 giving evidence on line of above

pleadings. Per contra Respondent led her evidence

on above line of pleadings and to support herself,

examined RW-2 Nandkumar Parikh, handwriting

expert, as she was claiming that the income tax

return tendered in the "earlier" Petition was

forged and was also claiming that the letter

dated 29th November 2002, Exhibit 84, relied on by




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the Petitioner in Criminal Case, as sent by her to

police that the marriage was willful, was forged.

Respondent examined RW-3 Ravindra Sangavikar,

employee from Bank regarding loan she had taken.

(Although question of maintenance was not being

decided -). Sub Registrar Saheb Khan was examined

as RW-4 regarding value of the property of the

Petitioner at Seven Hills to claim that it was

worth more than a Crore of Rupees. RW-5 P.S.I.

Shahabuddin Shaikh has been examined to bring on

record evidence that in the police station

concerned original of Exhibit 84, the letter dated

29th November 2002 was not available and neither

station diary entry was there. RW-6 Satish Purohit

was examined to prove Tipan Exhibit 168 that when

the engagement took place, marriage was initially

scheduled for 27th December 2012.

8. The Family Court considered the evidence

led by the parties and held that it had

jurisdiction to try the case. It however held that




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Petitioner failed to prove cruelty by Respondent

and that he had also failed to prove that she had

deserted him without reasonable cause. The Family

Court observed that question of bar under Section

23 of the Hindu Marriage Act does not survive.

Family Court concluded that Petitioner was not

entitled for decree of divorce.

ARUGMENTS FOR PETITIONER-APPELLANT:

9. Against the Judgment, present Family

Court Appeal came to be filed raising various

grounds. It is claimed in the Appeal and it has

been argued by the learned counsel for the

Petitioner - Appellant that the Family Court did

not consider the evidence in proper perspective.

The marriage between the parties was a love

marriage which was performed against the wish of

parents of the Respondent. The parents and other

relatives except one uncle of Respondent, did not

attend the marriage. Although photographs were

produced, none showed the presence of the parents




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or other family members of the Respondent. The

Respondent had herself filed the letter to the

police on 29th November 2002 vide Exhibit 84 but

later on has gone back from her signature on the

letter. The Appellant proved on record the conduct

of the Respondent, post receipt by her of the

summons in the earlier petition. Petitioner proved

how he was abused and threatened on 26th February

2004 and 28th February 2004 and subsequently false

criminal case was filed. Because of the criminal

case Petitioner-Appellant and his brother were

arrested and thereafter released on bail. Other

family members had to rush to file anticipatory

bail petition, during the course of which hearing,

the Respondent appeared with bandaged hands to

prejudice the Court. It has been argued that the

Respondent made all endeavours to put the

Petitioner and his family members behind bars all

the while making false allegations. Although it

was pleaded that her thumbs were fractured, in

evidence she accepted that they were not




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fractured. Wild allegations were made that the

family members of the Petitioner were asking for

dowry and that Petitioner would have got girl

having M.B.B.S. The marriage took place with full

knowledge of the back-ground of the Respondent.

Wild allegations of miscarriage were made without

any medical evidence being brought on record. Dr.

Mrs. Mahindrakar was not examined. Family Court

failed to see that the private handwriting expert

examined, had relied only on xerox copies, which

was inadmissible. The Respondent filed domestic

violence case, which came to be dismissed. She

filed frivolous case against the advocates of the

Appellant, which also came to be dismissed.

Although the Appellate Court had remanded the

matter after acquittal, post impugned Judgment

the High Court maintained the Judgment of

acquittal and S.L.P. filed by the Respondent came

to be dismissed. Thus, it has been argued that the

cruelty has been proved. In present Appeal, the

Petitioner filed Civil Application Nos. 14302 of




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2015 and 15183 of 2015 with copies of documents

which are Judgments/applications in the various

proceedings between the parties supported by the

affidavits. Some of the Judgments and orders are

relating to the period before the impugned

Judgment while some Judgments and orders have been

rendered subsequent to the disposal of the

impugned matter.

10. Learned counsel for Respondent has not

disputed the correctness of the documents relating

to the Judgments and orders passed or applications

moved. The counsel have referred to the said

Judgments and orders as well as applications at

the time of arguments and we are taking note of

the subsequent proceedings also.

ARGUMENTS FOR RESPONDENT:

11. On behalf of the Respondent, the learned

counsel referred to Sub Rules (3) and (4) of Order

XXIII Rule 1 of the Code of Civil Procedure, 1908




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(C.P.C.) to argue that if the earlier Petition was

withdrawn without taking permission referred to in

Sub Rule (3), the Petitioner would be precluded

from instituting any fresh suit in respect of the

subject matter or part of the claim. It is argued

that the earlier Petition was for divorce on the

ground of cruelty and present Petition is also for

divorce on the ground of cruelty. As the earlier

Petition was withdrawn without taking permission

of the Court and which order has been clarified by

the High Court in the earlier Appeal, the present

Petition was barred. Learned counsel agreed that

the observation of the trial Court in Para 50 of

its Judgment that the present Petition was hit by

the principles of 'res judicata' was not

maintainable, as earlier Petition was not decided

on merits, but according to him the bar is under

Order XXIII Rule 1 of the C.P.C., which is

applicable. It is argued by the Respondent that

due to withdrawal of the earlier matter, the

Respondent was unable to prove her defence which




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she was to take in the earlier Petition. The

grounds raised for divorce are general and vague.

The Respondent denied in her written statement

that she was suspecting cousin sister of the

Petitioner. According to the learned counsel,

there was no evidence that the Respondent was

guilty of ill-treatment and desertion. (The

counsel took us through the evidence.) It is

claimed that in the earlier proceedings, the

documents filed of income tax return and Exhibit

84, letter claimed to be filed by the Respondent

to police, were forged and so handwriting expert

was examined. The counsel submitted that the

Respondent is ready to go and reside with the

husband and the husband is not ready to take her

back and thus divorce should not be granted. Lapse

of time is no reason to grant divorce.

Irretrievable breakdown of marriage is no ground.

Only because the Petitioner was acquitted in the

criminal proceedings, would not go to prove that

the Respondent inflicted cruelty. The first




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divorce petition was filed within fifteen months

of the marriage, which showed that the husband was

not interested in maintaining the marriage.

IN REPLY:

12. The learned counsel for the Petitioner in

reply submitted that when in the earlier Petition

the Petitioner had filed application for

withdrawal with permission to institute fresh

proceedings, if the permission was not being

granted, what Court could have done was to refuse

the permission but the Court could not have simply

disposed the Petition as withdrawn. He however,

did not press for this argument, as according to

him, the matter had been, at that time, carried to

the High Court and in Appeal High Court recorded

opinion and so that order has become final. The

learned counsel submitted that in the present

Petition, the Petitioner is not relying on the

earlier events which were agitated in the earlier

Petition, but is relying on the incidents which




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took place subsequent to the filing of the earlier

Petition and present Petition is based on those

subsequent facts which according to learned

counsel are not barred under Order XXIII of the

C.P.C. According to the learned counsel the

earlier Petition was based on facts till the date

of filing of the earlier Petition, which facts

themselves constituted cause of action. The

present Petition cannot be said to be based on the

same subject matter as in the present Petition,

the set of facts relied on are different and cause

of action is also different. According to the

counsel, subsequent to filing of the earlier

Petition, the Respondent reacted inappropriately

and further, the Petitioner and his family members

were dragged into criminal cases and they were got

arrested and harassed making wild allegations

against the character of the husband and criminal

acts were attributed, because of which the present

Petition was required to be filed. It is argued

that it would be unimaginable to hold that once a




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divorce petition on the ground of cruelty has been

withdrawn further divorce petition cannot be filed

even if there are subsequent events showing

cruelty. The counsel submitted that the record and

proceedings of Family Court show that the

Respondent resorted to raising various

obstructions to the Petitioner by filing various

criminal cases and even in the present Petition

irrelevant evidence was brought like that of the

valuer although question of maintenance was not

being decided and in cross-examination there were

multiple repetitions. Although the Respondent

claims not to be a person of law, she carried out

extensive cross-examination of the Petitioner, in-

person, on 9th July 2007, 10th July 2007, 21st

July 2007 and 12th October 2007. She has legal

acumen and is not a lay person and the evidence

has not been properly appreciated by the Family

Court.

13. It is submitted by the learned counsel




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for the Petitioner that in the record of the

Family Court at Page No.98, there is copy of

complaint dated 4th September 2007 which discloses

that Respondent filed complaint to the Police

Commissioner against Head Constable Adhane

claiming that he had given false evidence in the

criminal case. The Criminal Court accepted the

evidence of Adhane and acquitted the Petitioner

and his family members and thus such complaint

could not have been maintained. The counsel for

Petitioner further submitted that Respondent filed

application Exhibit 12 in the Petition before the

Family Court claiming domestic violence and even

secured some orders in her favour on 11th January

2007. Subsequently she filed Criminal M.A. No.130

of 2008 under Domestic Violence Act before the

J.M.F.C. on 4th February 2008 and thereafter on

10th March 2008 withdrew the application under

Section 26 of the Domestic Violence Act which she

had filed before the Family Court. This Criminal

M.A. No.130 of 2008 containing similar allegations




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as made before the Family Court, has also come to

be dismissed by 19th Court of J.M.F.C., Aurangabad

on 31st December 2012.

14. Before proceeding to discuss the facts of

the matter, quick reference may be made to the

Judgments relied on by the learned counsel for

both sides to support their averments.

RULINGS:

15. The learned counsel for the Petitioner

has placed reliance on the following reported

cases:

(A) Learned counsel for the Petitioner relied on

the case of X husband vs. Y wife, reported in

2014(4) Bom.C.R. 168 to submit that this Court

had, in that matter, taken note of how the wife in

that matter also had subjected the husband to

various criminal proceedings in a bitter legal

battle and this Court had held that filing of




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false criminal cases against a spouse is itself an

act of cruelty and can very well sustain a decree

of divorce.

(B) The Petitioner further relied on the case of

Vishwanath Agrawal s/o Sitaram agrawal vs. Sarla

Vishwanath Agrawal, reported in (2012) 7 Supreme

Court Cases 288, where also the husband was

dragged into criminal cases and Hon'ble Supreme

Court observed in Para 50, that subsequent events

can be considered. The Hon'ble Supreme Court

observed in Para 47 as below:

47. Another aspect needs to be taken note of.

The respondent had made allegation about the

demand of dowry. RCC No. 133/95 was instituted

under Section 498-A of the Indian Penal Code

against the husband, father-in-law and other

relatives. They have been acquitted in that

case. The said decision of acquittal has not

been assailed before the higher forum. Hence,

the allegation on this count was incorrect and

untruthful and it can unhesitatingly be stated

that such an act creates mental trauma in the




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mind of the husband as no one would like to

face a criminal proceeding of this nature on

baseless and untruthful allegations.

. In Para 54 and 55 of the Judgment, the

Hon'ble Supreme Court observed as follows:

54. Regard being had to the aforesaid, we haveto evaluate the instances. In our considered

opinion, a normal reasonable man is bound to

feel the sting and the pungency. The conduct

and circumstances make it graphically clear

that the respondent-wife had really humiliated

him and caused mental cruelty. Her conduct

clearly exposits that it has resulted incausing agony and anguish in the mind of the

husband. She had publicised in the newspapers

that he was a womaniser and a drunkard. She had

made wild allegations about his character. She

had made an effort to prosecute him in criminal

litigations which she had failed to prove. The

feeling of deep anguish, disappointment, agony

and frustration of the husband is obvious.

55. It can be stated with certitude that the

cumulative effect of the evidence brought on

record clearly establishes a sustained attitude

of causing humiliation and calculated torture




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on the part of the wife to make the life of the

husband miserable. The husband felt humiliated

both in private and public life. Indubitably,

it created a dent in his reputation which is

not only the salt of life, but also the purest

treasure and the most precious perfume of life.

It is extremely delicate and a cherished value

this side of the grave. It is a revenue

generator for the present as well as for the

posterity. Thus analysed, it would not be out

of place to state that his brain and the bones

must have felt the chill of humiliation. The

dreams sweetly grafted with sanguine fondness

with the passage of time reached the Everstine

disaster, possibly, with a vow not to melt. The

cathartic effect looked like a distant mirage.

The cruel behaviour of the wife has frozen the

emotions and snuffed out the bright candle of

feeling of the husband because he has been

treated as an unperson. Thus, analysed, it is

abundantly clear that with this mental pain,

agony and suffering, the husband cannot be

asked to put up with the conduct of the wife

and to continue to live with her. Therefore, he

is entitled to a decree for divorce.

(C). The counsel for Petitioner relied on the

case of Seth Ramdayal Jat vs. Laxmi Prasad,




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reported in AIR 2009 S.C. 2463to submit that the

Judgment in a criminal case is admissible to prove

conviction or acquittal. Learned counsel submitted

that Judgment in this matter shows that when in

the civil matter admission is given regarding what

was stated in the criminal case, the same would be

admissible. According to the learned counsel, in

the present matter the Respondent wife admitted

that in criminal case she had admitted her

signature on letter Exhibit 84 which was sent to

police on 29th November 2002, but she still backed

out from the signature in the civil proceedings

and even led evidence of handwriting expert to

prove that it was not her signature. The counsel

submitted that her admitting signature in the

criminal case was proved and was required to be

considered.

(D) The learned counsel for the Petitioner

relied on the case ofMalathi Ravi, M.D. vs. B.V.

Ravi, M.D., reported in (2014) 7 Supreme Court




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Cases 640to submit that even in the case brought

on the ground of desertion, by taking into

consideration subsequent events, divorce could be

granted on the ground of cruelty. The Hon'ble

Supreme Court referred to various incidents of

that matter and observed in Para 43 as under:

"43. As we have enumerated the incidents,

we are disposed to think that the husband has

reasons to feel that he has been humiliated,

for allegations have been made against him

which are not correct; his relatives have been

dragged into the matrimonial controversy, the

assertions in the written statement depict him

as if he had tacitly conceded to have

harboured notions of gender insensitivity or

some kind of male chauvinism, his parents and

he are ignored in the naming ceremony of the

son, and he comes to learn from others that

the wife had gone to Gulbarga to prosecute her

studies. That apart, the communications, after

the decree for restitution of conjugal rights,

indicate the attitude of the wife as if she is

playing a game of chess. The launching of

criminal prosecution can be perceived from the

spectrum of conduct. The learned Magistrate

has recorded the judgment of acquittal. The




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wife had preferred an appeal before the High

Court after obtaining leave. After the State

Government prefers an appeal in the Court of

Session, she chooses to withdraw the appeal.

But she intends, as the pleadings would show,

that the case should reach the logical

conclusion. This conduct manifestly shows the

widening of the rift between the parties. It

has only increased the bitterness. In such a

situation, the husband is likely to lament in

every breath and the vibrancy of life melts to

give way to sad story of life."

. The learned counsel submitted that facts

of the present matter are similar and require

drawing of conclusion of cruelty and divorce needs

to be granted. It is stated, as was done by the

Hon'ble Supreme Court in the above referred

matter, this Court is competent to grant divorce

and even pass order granting permanent alimony

under Section 25 of the Hindu Marriage Act, 1955,

taking note of the status of the parties.

(E). The further reliance was placed on the




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case of K. Srinivas Rao vs. D.A. Deepa, reported

in (2013) 5 Supreme Court Cases, 226. In Para 28

of the Judgment, the Hon'ble Supreme Court

observed as under:

"28. Pursuant to this complaint, the police

registered a case under Section 498-A IPC. Theappellant husband and his parents had to apply

for anticipatory bail, which was granted to

them. Later, the respondent wife withdrew the

complaint. Pursuant to the withdrawal, the

police filed a closure report. Thereafter, the

respondent wife filed a protest petition. The

trial Court took cognizance of the case

against the appellant husband and his parents

(CC No.62 of 2002). What is pertinent to note

is that the respondent wife filed criminal

appeal in the High Court challenging the

acquittal of the appellant husband and his

parents of the offences under the Dowry

Prohibition Act and also the acquittal of his

parents of the offence punishable under

Section 498-A IPC. She filed criminal revision

seeking enhancement of the punishment awarded

to the appellant husband for the offence under

Section 498-A IPC in the High Court which is

still pending. When the criminal appeal filed




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by the appellant husband challenging his

conviction for the offence under Section 498-A

IPC was allowed and he was acquitted, the

respondent wife filed criminal appeal in the

High Court challenging the said acquittal.

During this period the respondent wife and

members of her family have also filed

complaints in the High Court complaining about

the appellant husband so that he would be

removed from the job. The conduct of the

respondent wife in filing a complaint making

unfounded, indecent and defamatory allegation

against her mother-in-law, in filing revision

seeking enhancement of the sentence awarded to

the appellant husband, in filing appeal

questioning the acquittal of the appellant

husband and acquittal of his parents indicates

that she made all attempts to ensure that he

and his parents are put in jail and he is

removed from his job. We have no manner of

doubt that this conduct has caused mental

cruelty to the appellant husband."

(F). Learned counsel for the Petitioner relied

on the case of Naveen Kohli vs. Neelu Kohli,

reported in (2006) 4 Supreme Court Cases 558,

which was followed by the Hon'ble Supreme Court in




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the matter of Samar Ghosh vs. Jaya Ghosh, reported

in (2007) 4 Supreme Court Cases, 511 also, to

submit that there was no uniform standard laid

down for guidance as to what amounts to mental

cruelty, but still the Hon'ble Supreme Court has

referred to some of the instances in Para 101 of

the Judgment of Samar Ghosh, cited supra.

Referring to the instances, the learned counsel

submitted that in the present matter also the wife

can be held responsible for inflicting cruelty to

her husband.

(G) As regards the objections raised under

Order XXIII Rule 1 of C.P.C., the learned counsel

for Petitioner relied on the case of Vallabh Das

vs. Dr. Madan Lal and others, 1970(1) Supreme

Court Cases 761.

16. This Judgment was followed by Hon'ble

Supreme Court in the matter of N.R. Narayan Swamy

vs. B. Francis Jagan, reported in (2001) 6 Supreme




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Court Cases 473. The Hon'ble Supreme Court

observed in Para 10 as under:

10. The aforesaid rule would have no

application in a proceeding initiated for

recovering the suit premises on the ground of

bona fide requirement which is a recurring

cause. Order 23 Rule 1(4)(b) precludes theplaintiff from instituting any fresh suit in

respect of such subject matter or such part of

the claim which the plaintiff has withdrawn.

In a suit for eviction of a tenant under the

Rent Act on the ground of bona fide

requirement even though the premises remain

the same, the subject matter which is the

cause of action may be different. The ground

for eviction in the subsequent proceedings is

based upon requirement on the date of the said

suit even though it relates to the same

property. Dealing with similar contention in

Vallabh Das v. Dr. Madanlaland Others [(1970)

1 SCC 761)], this Court observed thus:

The expression 'subject-matter' is not

defined in the Civil Procedure Code. It does

not mean property. That expression has a

reference to a right in the property which the

plaintiff seeks to enforce. That expression

includes the cause of action and the relief




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claimed. Unless the cause of action and the

relief claimed in the second suit are the same

as in the first suit, it cannot be said that

the subject-matter of the second suit is the

same as that in the previous suit.

17. Learned counsel for the Respondent placed

reliance on the following Reported Cases:

(A) The learned counsel for the Respondent

relied on the case of Surjit Kaur vs. Jhujhar

Singh, reported in 1978 CJ (P&H) 286, where Order

XXIII Rule 1 of C.P.C. was invoked to bar the

second Petition as it was on same cause of action.

(B). The learned counsel for Respondent relied

on the case of Darshan Gupta vs. Radhika Gupta,

reported in AIR 2013 S.C. (Supp) 85, to submit

that ground of irretrievable breakdown of marriage

is not available to husband when he is responsible

for the conditions. The counsel submitted that the

Hon'ble Supreme Court has, observed in Para 35 of




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that Judgment that perusal of grounds on which

divorce can be sought under Section 13(1) of Hindu

Marriage Act, 1955 would reveal that the same are

grounds based on the 'fault' of the party against

whom dissolution of marriage is sought. The party

seeking divorce should be innocent. It is argued

that in the present matter the husband is not

innocent.

(C) The learned counsel for Respondent relied

on the case of Vishnu Dutt Sharma vs. Manju

Sharma, reported in AIR 2009 S.C. 2254(1) and

submitted that ground of irretrievable breakdown

of marriage is not available as carving out such

ground would amount to legislating.

POINTS FOR CONSIDERATION:

18. Considering the various pleadings of the

parties, the evidence and arguments raised, the

Points for Determination are:




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(1) Whether the present Petition for

divorce based on incidents occurring

subsequent to the earlier Petition is

maintainable?

(2) Whether the Petitioner has proved that

the Respondent has, after solemnization of

the marriage, treated the Petitioner with

cruelty and he is entitled to decree of

divorce?

WHETHER PRESENT PETITION WAS MAINTAINABLE:

19. As regards first Point for Determination,

reference may be made to Order XXIII Rule 1 Sub-

Rule (3) and (4) of C.P.C. The Rule deals with

withdrawal of suit or abandonment of part of

claim. The Sub-Rules (3) and (4) of Rule 1 of

Order XXIII of C.P.C. read as follows:-

"(3) Where the Court is satisfied,-




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(a) that a suit must fail by reason of some

formal defect, or

(b) that there are sufficient grounds for

allowing the plaintiff to institute a fresh

suit for the subject-matter of a suit or part

of a claim,

it may, on such terms as it thinks fit, grant

the plaintiff permission to withdraw from such

suit or such part of the claim with liberty to

institute a fresh suit in respect of the

subject-matter of such suit or such part of the

claim.

(4) Where the plaintiff-

(a) abandons any suit or part of claim under

sub-rule (1), or

(b) withdraws from a suit or part of a claim

without the permission referred to in sub-

rule (3),

he shall be liable for such costs as the Court

may award and shall be precluded from

instituting any fresh suit in respect of such

subject-matter or such part of the claim."




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. It is clear from reading of the above

that if the plaintiff withdraws from the suit

without taking permission, he would be precluded

from instituting any fresh suit 'in respect of

such subject-matter or such part of the claim'.

The Hon'ble Supreme Court in the matter of

Vallabh Das vs. Dr. Madan Lal, (referred supra)

has observed that expression "subject-matter"

includes the cause of action and the relief

claimed. In the matter of N.R. Narayan Swamy vs.

B. Francis Jagan (referred supra), the Hon'ble

Supreme Court was dealing with eviction matter

under the Karnataka Rent Control Act, where

landlord claimed eviction on the basis of bona

fide requirement. The Hon'ble Supreme Court found

that in the matter of bona fide requirement, there

could be recurring cause of action. In the suit

for eviction on the ground of bona fide

requirement, even though the premises remain the

same, the subject-matter which is cause of action,

may be different. Case of "Sujit Singh" relied on




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by learned counsel for Respondent can be

distinguished as it had different facts and

subsequent matter was based on same cause of

action. In the present matter, although the

foundational facts regarding relationship of the

parties remain the same, the present proceedings

could not be said to be barred as although they

refer initially to earlier incidents, they are

based on events which took place subsequent to the

filing of the earlier proceeding which was sought

to be withdrawn in view of the subsequent

developments. If such view is not taken, it would

mean that once in such matter if the spouse fails

to establish cruelty, subsequently also on the

ground of cruelty, proceeding would not be

entertainable. When the relationship continues

between the couple, there could be recurring

incidents giving rise to fresh causes of actions

and claim for relief which would be subject-matter

for the subsequent action. For such reasons, we do

not find that the present Petition is barred. We




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would ignore the claims of the Petitioner with

reference to the incidents claimed by him in the

earlier Petition as constituting cause of action

for the earlier Petition. Order XXIII Sub Rule (4)

of Rule 1 of C.P.C. precludes the plaintiff from

instituting any fresh suit in respect of the

subject-matter, however, it does not bar the

earlier defendant or respondent from agitating the

instances provided they are relevant in subsequent

petition. In the present matter although now

objection under Order XXIII of C.P.C. has been

raised, the Respondent has raised various disputes

in evidence with reference to what were instances

claimed by the Petitioner in earlier Petition. As

the present Petition is now being dealt with and

decided on the basis of subsequent events, the

reference to the evidence of the Respondent with

regard to earlier instances can be referred only

where and if relevant to decide present subject

matter or for appreciation of evidence if the

witness is reliable.




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CRUELTY:

20. Coming to the second Point for

Determination, there is evidence of the Petitioner

claiming that notice of the earlier divorce

Petition No.A.46 of 2004 was served on the

Respondent. Exhibit 53 shows that the summons of

that proceeding was served on the Respondent on

9th February 2004. As per the Petitioner, when she

received notice, she threatened the Petitioner

with false prosecution under Section 498-A of

I.P.C. against him and his family members. He has

deposed that on 25th February 2004 when he was

travelling on motorcycle from Kranti Chowk to

Paithan Gate, at about 2.00 p.m. in Nutan Colony

Respondent stopped him and threatened him with

complaint under Section 498-A of I.P.C. He claims

that she threatened that she will commit suicide

and implicate him and his family members and put

them in jail. His evidence is that on 26th

February 2004 also Respondent visited his clinic




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and in front of patients abused him and threatened

him. Regarding this incident, he sent application

to Kranti Chowk Police Station on 27th February

2004. The Petitioner further deposed that on 28th

February 2004, in the morning, Respondent came in

front of the clinic asking him to withdraw the

divorce petition and gave threats of complaint

under Section 498-A of I.P.C. if he will not

withdraw the Petition. Petitioner claims that he

informed the police about this incident also on

28th February 2004 which was recorded as N.C. No.

163 of 2004. Document in this regard is at Exhibit

95.

. According to the Petitioner, Respondent

filed false F.I.R. dated 29th February 2004

alleging that he and his family members ill-

treated her, assaulted her, demanded Rupees Two

Lakhs and fifteen Tola gold and went to the extent

of alleging assault on her on 28th February 2004.

This led to offence being registered at Jinsi




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Police Station and he and his brother Vijay got

arrested and thereafter were released on bail. It

is deposed that at the time of bail proceedings,

Respondent, although she did not have any injury,

appeared with both hands bandaged, to get sympathy

of the Court. The evidence further shows as to how

in the criminal case the Respondent appointed

Advocate and brought about criminal cases and led

false evidence causing great humiliation and

mental agony. It is claimed that relations have

deteriorated to such an extent that now it is not

possible to live with Respondent.

21. The Respondent extensively cross examined

the Petitioner and brought on record various

documents relating to the criminal cases. The

Petitioner, in cross-examination, gave certain

admissions (relating to incidents which were basis

of earlier petition) while denying allegations of

ill-treatment by him or that he or his family

members had demanded dowry or beaten the




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Respondent.

RESPONDEDNT NOT RELIABLE:

22. The Respondent filed affidavit as

examination-in-chief and reiterated what she had

claimed in her say/written statement, which we

have discussed above. We need not repeat the same.

She has also been cross-examined and her cross-

examination reveals certain facts which show that

she is not reliable witness. We will briefly refer

to those instances:

(a). In evidence the Respondent has

tried to show that after separating from

the Petitioner she, having qualification of

BAMS, has tried to practice, for which she

joined the office of one Dr. Roplekar and

one Dr. Jadhav ( Para 36 and 37 of her

examination-in-chief). She claimed that she

could not continue due to the pressure from

the mother of Petitioner. Thus, she has




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tried to show that the Petitioner and his

family are making her life miserable. In

cross-examination, however, she accepted

that her own sister, with whom she had got

good relations, herself has a clinic at

Kartiki Hotel (Para 2 of the cross-

examination). She denied that she was

practicing with her sister.

(b) In pleadings and in evidence

Respondent claims that the Petitioner

husband took away part of the amount of

loan which she had taken from the Bank for

her clinic. However, her cross-examination,

Para 9 shows that she had submitted

quotations to the Bank to get the loan

released. Her evidence ( Cross - Para 29)

shows that initially she accepted that she

received cheque from Bank of Rupees Ten

Thousand in the name of M/s. Vijay and

sons, but in further cross-examination she




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conveniently pleaded loss of memory with

regard to various specific cheque amounts

pointed out by the cross examiner, given to

Shantiram Glasses, Kaushaldeep, Usha

Electrics and System and Store.

(c). Respondent raised much hue and cry

regarding the pleading of the Petitioner

that theirs was a self arranged or love

marriage. She went to the extent of even

denying application dated 29th November

2002 (Exhibit 84) given to police station

on the date of marriage that she had

married by her own will and complaint of

her parents or relatives may not be given

cognizance. She has even led evidence of a

handwriting expert, RW-2 Nandkumar to claim

that the signature on Exhibit 84 was not of

hers, although in the criminal case bearing

RCC No.414 of 2004, evidence came on record

of Head Constable Shaikhnath Adhane that on




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29th November 2002 he was given original of

this document (marked Exhibit 78 in the

criminal case) for inquiry and that he had

gone to the house of the Petitioner and

also given understanding to the parents of

the Respondent. Against this, the cross-

examination of the Respondent, Para 10,

shows her admitting that one year before

the marriage she had gone to the clinic of

the Petitioner to extend Diwali greetings.

Although the Respondent claims that the

marriage was with consent of her parents,

no evidence worth the name was brought on

record by her. In the photographs of

marriage, brought on record, her parents or

other relatives are not shown. According to

Petitioner only one uncle of hers had

attended the marriage. Even the marriage

certificate Exhibit 137 has signatures of

witnesses on her behalf as those advocates

who were friends of the Petitioner, not




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known to Respondent since before. Although

denied in Written Statement, Respondent

admitted (in Para 17 of her cross-

examination) that the marriage reception

dated 8th December 2002 was arranged by the

Petitioner.

(d). Respondent claimed (in Para 18 of

cross-examination) that she was not sent

for Makar Sankrant. However, the evidence

further showed that she accepted that

everything was all right for two months

after the marriage. Marriage took place on

29th November 2002. As such Makar Sankrant

would be in the middle of January 2003.

Inspite of this she wanted to insist that

she was not sent for Makar Sankrant.

(e). Respondent wanted to attribute

misconduct to the Petitioner and his family

claiming that she was not allowed to go to




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meet her father when he met with an

accident. However, evidence has come on

record that she had indeed been going out

and had gone and met her father.

(f). Respondent claimed physical

assault on her on 28th February 2004 seen

by compounder Vishnu (Para 53 of

examination-in-chief). She claimed that the

incident took place at 12.30 p.m. Still she

went to Ghati Hospital only at 5 - 5.30

p.m. and that too to Dr. Vikhe, husband of

her friend Anupama (Para 19 of her cross-

examination). She tried to show that she

did not go to private doctor in order to

save name of the family but still she goes

to husband of her friend in Government

hospital and then has tried to show that it

was beyond her control that it became a

police case. Although she claimed assault,

the spot was in the clinic which was in




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crowded area (Para 19 of her cross-

examination) and still she had no witness

in her support. In criminal case and in

this Petition also there is no

corroboration to her claims of having been

beaten more than 9-10 times.

(g). In written statement Para 14 and

the evidence Para 15 Respondent claimed

that in the incident dated 28th February

2004 she was so assaulted that her both

thumbs of the hands were fractured.

However, in cross-examination Para 20 she

admitted that she did not have fracture to

the thumbs of both the hands. In evidence

she claimed that she had tendon injury to

her thumbs. Even this is not supported by

medical evidence. Para 27 of her cross-

examination shows that she admitted that at

the time of anticipatory bail of the

relatives of the Petitioner, she was




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present in Court and filed photographs

showing bandage to both of her hands. Of

course, she immediately retracted from this

admission also.

(h). Although Respondent denied her

signature on Exhibit 84, the application

dated 29th November 2002 filed to police

station about willful marriage, the

Respondent was confronted (in Para 25 of

the cross-examination) with her admission

in the criminal case where she admitted her

signature on the document. She deposed that

she had admitted her signature in the case

under Section 498-A of I.P.C. Then she has

added that it was under pressure of

Advocate Ghanekar representing the accused.

(i). In Para 27 of her cross-

examination, Respondent accepted that there

was no dispute at the time of betrothal




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ceremony about what is to be given. We have

already mentioned that the subsequent

reception was arranged by the Petitioner is

admitted fact. The marriage admittedly took

place in a temple followed by registration

before the Marriage Registrar vide Exhibit

137 and a letter to police vide Exhibit 84.

Inspite of this, the Respondent has tried

to depose that the Petitioner and his

family members were subsequently harassing

her for dowry. Evidence rather shows that

after the betrothal the family of

Respondent was not willing but Petitioner

went ahead with support of his family and

friends as Respondent herself was willing

and they got married. Petitioner and his

family knew that father of Respondent was a

humble Class IV employee and she was

B.A.M.S. and her younger sisters and

brother were still studying. Still they

went ahead with the marriage as Respondent




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was willing. A family interested in dowry

would not have done that.

(j). Although the Respondent claimed

that when she was cohabiting with the

Petitioner, she was seriously beaten on

more than 8-9 occasions, no single piece of

evidence was brought on record either in

the form of medical certificates or the

evidence of any other doctor to whom

Respondent claims that she was taken by the

Petitioner.

(k). Respondent denied (in Para 27 of

cross-examination) that she had engaged

Advocate Nanasaheb Jagtap in Criminal Case

No.414 of 2004 as Advocate to assist the

prosecutor. However, in subsequent cross-

examination (Para 33) when she was

confronted with the Vakalatnama Exhibit 132

and other documents, she had to admit that




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she did engage Advocate Jagtap in the

criminal case.

(l). Respondent claimed (in Para 3 of

her examination-in-chief) that marriage was

preponed and so her father gave five Tola

gold and had agreed to give ten Tola gold

within a year. Inspite of this, she has led

evidence to claim that her in-laws were

troubling her for fifteen Tola gold and

Rupees Two Lakhs. No such assertion was

made against the in-laws in the F.I.R.

(Exhibit 86) which she had filed on 29th

February 2004. In the F.I.R. this was

attributed only to the husband.

(m). Respondent has claimed that when

she was assaulted and left at the place of

her parents, she was pregnant by three

months and because of the assault she was

taken to Dr. Mrs. Mahindrakar and although




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doctor informed the Petitioner, he did not

come and she lost the child. Although such

serious allegations have been made, neither

Dr. Mrs. Mahindrakar was examined nor any

other medical evidence is brought to show

that indeed the Respondent was pregnant and

that she suffered miscarriage.

IMPUGNED JUDGMENT NOT MAINTAINABLE:

23. We have gone through the evidence of the

Petitioner as well as Respondent. The Family Court

discussed the evidence and while discussing the

evidence of the Petitioner, referred to the

admissions given by the Petitioner to observe that

the admissions shattered his evidence, But, while

referring to the Respondent, Family Court

definitely concluded (in Para 66 of Judgment) that

she has given false testimony to some extent. The

observations of the Family Court show (in Para 40

of the Judgment) that this is not a case of

physical cruelty. As regards mental cruelty, in



husband filing divorce petition is no justification for wife to lodge false criminal cases against...

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